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Three Considerations In Retaining Appellate Counsel

Three Considerations In Retaining Appellate Counsel

At some level, law is unique because it is a model based largely on conflict and dispute and the concept of fault. Most every person or business entity takes issue with being at fault. In the ideal world (which few of us ever experience because life is a messy, non-linear process), the legal system’s foundational laws prevent conflict by an ever-developing body of law responsive to society.

Where this is not the case, litigation in a trial court may ensue. Short of an agreement upon which it terminates, a party will more or less win or lose in typical cases. In civil cases, the typical remedy ordered equates to money in one way or another. With criminal cases, the sanctions are greater and may involve the loss of constitutional rights, including imprisonment or in rare cases the death penalty.

Since even the best of systems fail, it is important to have checks and balances. This is the function of an appeal to the Indiana Court of Appeals, or in rare circumstances, the Indiana Supreme Court or United States Supreme Court. This blog post focuses on the three (3) major considerations in retaining appellate counsel to addresses potential trial court errors:

Should An Appeal Be Taken?

At the fundamental level, litigants who have lost a case are often still “raw” from the outcome and many, if not most, think the trial court judge somehow “got it all wrong.” However, if the legal matter boils down to whom the trial court judge should believe, this is what he or she was elected to do. The Court of Appeals or Supreme Court gives extraordinary to calls it makes on disputed facts.

Thus, it is critical to have a frank and forthright discussion about if an appeal should be taken. Factual cases are usually the least successful of appeals. This discussion should be about the merits of an appeal, not whether there is a right to appeal. Under constitutional and statutory principles in Indiana, there is generally one (1) appeal as a matter of right from Indiana trial courts.

An appeal of a case that does not have viable potential of reversal and/or which is brought for other legal reasons (i.e., precedent, such as Row v. Wade), prolongs the inevitable outcome of losing and for both parties causes continued impairment, whether it is emotionally healing from a highly contested domestic case or closure of a business dispute, all have costs.

Thus, if you are considering appeal, you need a straightforward assessment the appeals’ strengths and weaknesses, relative to overall cost and benefit. By way of example, appealing a $10,000 judgment may not make business sense, despite the appeals’ merit, if the cost of the appeal is estimated to be $20,000 or more. From a law and economics analysis, this equates to roughly a $10,000 +/- loss.

This is not to say legal principle and future litigation considerations do not play a part in this decision. They do. Notwithstanding, Ciyou & Dixon, P.C. advocates observe that in many cases appellants do not have a crisp and clear idea of what they are appealing and why. That is a recipe for legal, life and business failure.

Ultimately, Ciyou & Dixon, P.C.’s position is you should have an answer to this question and its permutations before a final decision is made to appeal. This is sometimes difficult because a Notice of Appeal has to be filed within thirty (30) days of a final judgment or the right to appeal is waived. This compressed time for consideration which may mask a prudent decision. Be careful and make an objective analysis.

In short, “Do you know why you are appealing?”

Who Should Handle the Appeal?

Just as important a question is who should handle the appeal. In many cases, the obvious answer is your trial counsel. You have paid him or her to learn and try your case. The fact that you did not prevail may have nothing to do with his or her legal skills. What do you think?

Moreover, some trial attorneys are gifted in trial but may not possess these skills for an appeal or may simply chose not to do appeals. This is not good or bad but a reflection of one (1) of two (2) realities. The first is it is often helpful to have a fresh set of legal eyes trained on the appeal. Everyone, including attorneys, can have a myopic or skewed view of a case. A different appellate attorney may not come to the appeal with any preconceived notions of the matter. This may make the appeal stronger.

More often the case is an attorney and firm may not handle appeals. The time requirements for trials versus appeals are sometimes inconsistent. An appeal may well take an attorney a solid week of uninterrupted work to complete into a final form. A schedule with daily hearings may not allow this.

Furthermore, not every attorney or firm can or desires to spend professional time in this pursuit. It is a complex process involving reviewing the trial transcript, evidentiary exhibits, determining issues, researching the controlling statutory and case law and then writing the brief and refining it over and over to a well reasoned precise document.

Consider this and ask, “Who should handle your appeal?”

What Issues to Raise?

Raising only the best legal issues, like everything else in life, is sometimes constrained by human nature and the desire to be right. The fact that a legal issue may prevail, along with the right to raise on appeal, does not make it legally right or prudent to do so. Issue after issue can dilute time and attention to the legal issues that truly matter.

This occurs in at least two (2) ways.

First, and as noted at the outset, there are precise rules governing appeals. One rule covers the length. The appellant (who brings the appeal) and appellee (who likely prevailed below and responds on appeal) may file a brief up to 30 pages in length or 14,000 words (words counting usually equates to a few more pages). Directing your counsel to taking page upon page on issues that do not make legal sense is just removing the pages that may be spent on the more viable issues.

Second, every issue–including simple ones–takes time and money to prepare. Thus, it may make sense to focus on the broader issue that might cause reversal of the narrower one. Or if the potential issues that are viable do not have enough net gain if successful, it may be wise to focus attention on those that do.

These are three (3) threshold questions to consider in selecting appellate counsel. The critical fact is to trust him or her to accept the outcome. Experienced appellate attorneys cut across the entire expanse of civil and criminal practice. However, they all have two (2) commonalities. The first is they do not take a cookie-cutter approach to any appeal. What makes perfect legal sense in even similar cases may not in another.

Second, they have the ability to take conflicting facts and law and see them through your eyes to make your best arguments. At the end of the day, they share many traits with professional non-fiction writers. The ability to tell a story in a linear and factual way.

What issues are important to you and your case?

Ciyou & Dixon, P.C. attorneys handle criminal and civil appeals in the Indiana Court of Appeals and Indiana Supreme Court. The decision to take an appeal and the selection of the right fit in your legal counsel is critical. We hope this blog post helps you if you face this situation. This blog post was written by attorney Bryan L. Ciyou.


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Ciyou & Dixon, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.

Indianapolis Divorce Attorneys, Ciyou & Dixon, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.